ZEESHAN AFZAL vs QAISER ALI R — 2023 PLD 99 PESHAWAR-HIGH-COURT

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ZEESHAN AFZAL VS QAISER ALI R.2---Elections act (XXXIII of 2017), Preamble---Local Council Elections---Controversy relating to polls---Rule 2 of the Khyber Pakhtunkhwa Local Councils (Conduct of Election) Rules, 2021 stipulated that in case of any controversy or explanation thereof, the provisions of Elections act, 2017, were fully applicable in the matters of Local Council Elections. R. 9---Constitution of Pakistan, Art. 199---Local Council Elections---Recounting of votes/ballot papers---Election Commission, powers of--- Constitutional petition--- Maintainability--- Election Commission, on application of respondent/candidate, ordered the Returning Officer to carry out recounting of votes---Petitioner/returned candidate invoked constitutional jurisdiction of the High Court against the order passed by the Election Commission---Contention of the respondent/candidate was that an appeal could be preferred only before the Supreme Court against an order passed by the Election Commission---Held, that though R. 9(5) of the Khyber Pakhtunkhwa Local Councils (Conduct of Election) Rules, 2021 ("the Rules 2021") provided the remedy of appeal before the Supreme Court to a person aggrieved by a declaration of the Election Commission, however, Election Commission could only deal with declaration of a poll as void and had no power to issue direction for recounting of votes---Poll, admittedly, had not been declared void, in the present case, by the Election Commission rather the impugned order pertained to the recounting of votes, which was not the mandate of R. 9(1) of the Rules, 2021---Provisions of R. 9(5) of the Rules 2001 were absolutely inapplicable to the present case, therefore, High Court had the jurisdiction to entertain and adjudicate upon the matter-in-issue by dint of Art. 199 of the Constitution---Constitutional petition was maintainable. R. 8---Khyber Pakhtunkhwa Local Government Act (XXVIII of 2013), Preamble---Elections Act (XXXIII of 2017), Preamble---Local Council Elections---Polling---Election Commission, powers of---Validity---Rule 8 of the Khyber Pakhtunkhwa Local Councils (Conduct of Election) Rules, 2021 ("the Rules, 2021") encompassed powers of Election Commission during the poll, which started with the words "Save as otherwise provided, the Commission may" which indicated that the provisions of R. 8 were subject to the stipulations and conditions as provided in the Rules, 2021 and same could not be taken in isolation to the other provisions of law governing elections. Rr. 8, 9 & 47(5)---Elections act (XXXIII of 2017), S. 95(5)---Local Council Elections---Recounting of votes---Returning Officer, powers of---Declaration of the Election Commission---Scope---Issuance of final consolidated results---Scope---Election Commission, on application of respondent/candidate, ordered the Returning Officer to carry out recounting of votes---Petitioner/returned candidate contended that after issuance of final consolidated results vide Form XX and XXI, Election Commission had no jurisdiction to recount---Held, that though under the R. 47(5) of the Khyber Pakhtunkhwa Local Councils (Conduct of Election) Rules, 2021 ("the Rules 2021"), the Returning officer could recount the valid ballot papers under certain conditions, however, R. 47(6) of the Rules 2021 stipulated that the Returning officer would furnish original copies of 'consolidated statement' of the results of the count furnished by the Presiding Officer on Form-XX and 'Final Consolidated result' on Form-XXI to the Commission---Hence, the exercise of recounting of ballot papers was a phenomenon which had to be completed before the issuance of Form-XX and Form-XXI---after issuing such Forms under sub-rule (6), a Returning Officer or the Election Commission could not revert back to sub-rule (5)---Provisions of S. 95(5) of the Elections act, 2017, were also explicit that the Returning Officer could recount the ballot papers only once and that too before commencement of the consolidation proceedings---after completion of consolidation proceedings, the Election Commission as well as Returning officer, both become functus officio to order for recount or recount ballot papers---High Court set-aside the impugned order of carrying out recounting of votes passed by the Election Commission---Constitutional petition was allowed, in circumstances.

ZEESHAN AFZAL vs QAISER ALI R — 2023 PLD 99 PESHAWAR-HIGH-COURT

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